Child Custody
by: New Mexico Legal Aid
Sole Custody and Joint Custody
There are two kinds of child custody in New Mexico. They are called sole custody and joint custody.
The person with custody of the children is the person with whom they live.
Both parents make the daily decisions for the children. Thisis called joint custody.
One parent makes the daily decisions for the children. That is called sole custody.
Custody does not say how much time the children will spend with each parent. An "order of custody" says how much time will be spent with each parent. It also says what visits will be allowed. It says how they will happen, and how long they can be.
Something is legal if it is ordered by law. Custody of the children is ordered by the court under the law.
This order makes the power to make every day decisions for the good of the children.
There is joint custody. Both parents have to make the most important decisions.
There is sole custody. The parent having custody makes the decisions.
These decisions include:
- Medical and dental care.
- Choosing the schools the children will go to.
- Deciding what religion they will follow.
The children are in joint custody.
The parents do not have to agree on every decision.
They must agree on the most important ones, such as:
- where the child goes to school;
- what religion the child follows;
- what sports or hobbies the child takes up;
- whether the child moves from the county;
- whether the child should have certain medical or dental work.
The way the child lived when the parents were divorced does not change.
This is called the, "status quo." The child will continue to see the same doctor. He/she will go to the same school as before the divorce. Everything remains the same. The parents can agree to a change. The court can order one.
New Mexico law supports joint custody. It feels it is best for children in a divorce. It supports two active parents for the children.
It will be very hard for a parent to get sole custody.
Best Interest of the Child
The court must decide whether joint or sole custody is right for the children in a divorce. To do this the court uses "the best interests of the child" as the reason for the decision. It means thinking of these and other things;
- what does the child's parents or parent want?
- what does the child want? Even if the court does not want to, the court must listen to what the child wants if he/she is over 14 years old. The court can still order its own plan.
- how does the child act with brothers and sisters, mother and father, and anyone else who is important to him?
- how does the child act at home, in school and in the community?
- what about the mental and physical health of everyone involved?
There are legal reasons why joint custody is better for the child/children. These reasons include:
- is the child close to both parents;
- can each parent support the child;
- is each parent ready to care for the child, or would one feel ready to give the child to the other parent;
- can the child grow normally living with visits of the parents;
- will each parent allow the other to take care of the child;
- how good are the plans of the parents and the court;
- what are the locations of the parents; how far apart;
- are the parents willing to cooperate with each other?
These may also be used to argue for sole custody.
Parenting Plans
Both parents have custody of the children. The law says each one must make a plan telling how to take care of the children. This plan is called a "parenting plan".
The parents agree on one of their plans. The court can order it to be adopted. If they don't, the court can bring someone else to do it. Or, the court can do it itself.
Parenting plans are supposed to make the parents think about how they will take care of the children. It is supposed to help them to be ready for problems as they come up. The plan is a guide for both parents to help them get through disagreements.
Even though the plan is not bendable, the parents can change it and make new schedules.
The parents have a serious problem. The plan helps them get along. The problem can then be solved.
The parenting plan should include:
- a time sharing setup. It should be for the school year. It should deal with weekdays and weekends:
- a time sharing setup for holidays;
- a time sharing setup during summer vacations;
- an agreement to keep things as they were, schools, doctors, dentists, religion, what county they will live in, sports and other hobbies they will do, and special needs.
- the right of each parent to see any records about the children;
- a plan to transport the children;
- what to do if the child is hurt or in danger;
- a way to settle problems;
- a telephone plan to contact each other;
- a plan to keep contact if the child is taken out of the state or county;
- a plan to keep contact with an extended family member.
The plan each turns in can have these things in it. It can have other things in it.
It can be smaller or larger. As the children grow up things may change. The parents may want to change the plan.
They can agree on a new plan without the court. They can ask the court to make it. If the court changes the plan, it may change the child support.
Guardian Ad Litem
A lawyer can be appointed to take care of the rights of the child. He is called the Guardian Ad Litem. If the fight over the children gets very rough, he should be there to speak for the children.
If child abuse is claimed, he has to be appointed. He will speak for the children He may also give the court advice. Sometimes he can help settle custody problems.
Each parent usually pays half the cost.
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